Cross-border Succession in Japan, Korea and China and Related Legal Issues

The disputes regarding international succession have been increasing in recent years in Japan, Korea and China due to the geographical proximity and free movement of people between those countries. However, the different conflict rules may raise the question as to legal uncertainty, lack of predictability and forum shopping in cross-border succession issues. Considering this legal situations, this paper explores the general legal issues arising out of the different conflict rules on succession in Japan, Korea and China, including North Korea, such as unity and scission principle, nationality and habitual residence as connecting factors, party autonomy issues and renvoi, from a comparative conflict of laws perspective. It especially focuses on international succession matters involving the so-called “special permanent residents” in Japan and analyzes the legal issues arising out of existing conflicts rule of the Northeast Asian countries. And also this paper examines the recent European developments on cross-border succession, that is, the adoption of the Regulation (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, in order to make clear whether or not any implications could be drawn from them. In conclusion, it suggests that in order to solve the “special permanent residents” issues in term of succession, the party autonomy, which is limited to the choice of the law of habitual residence and the lex situs should be allowed in choice of governing law for succession, in order to ensure legal certainty and to connect to the appropriate governing law. In this regard, the Korean choice-of-law rules and the EU Succession Regulation adopting party autonomy in succession could be referred to. It also indicates that the EU Succession Regulation gives some implications in that the unity principle in succession, which is to connect both movable and immovable properties to the deceased’s personal law, was adopted although it is difficult to determine which connecting factor is more appropriate, the lex patriae or habitual residence. Under the reference of the EU regulation, it is also suggested that, in order for the unity principle not to be broken up by another element, a renvoi should be restricted, where the deceased made a choice of the governing law for succession such as the law of habitual residence, the law of nationality and the lex situs.